Is it illegal to discriminate based on a gender stereotype?

Are you a female employee regularly made fun of for being too manly or teased for being what your coworkers call “too aggressive?” Are you a male employee insulted or humiliated for being feminine and for not conforming to what your coworkers believe a man should be? These situations are the result of gender stereotyping, and they are prohibited under Title VII as discrimination based on sex.

Title VII of the Civil Rights Act and Chapter 21 of the Texas Labor Code prohibit discrimination based on sex. While the statutes do not explicitly mention sexual harassment, sexual harassment is prohibited and included under sex discrimination. While sex discrimination focuses on discrimination in hiring, firing, promotion, and pay based on sex, sexual harassment focuses on conduct in the workplace that is detrimental or hostile to one gender.

Sexual harassment also includes harassment based on an employee’s failure to conform to a gender stereotype. Men might be stereotyped as tough, assertive, and lacking emotional sensitivity. Women might be stereotyped as meek, feminine in dress and mannerism, and emotional. So, for example, demeaning an assertive female employee as “too aggressive” or “bossy” can be harassment based on the employee’s not acting like a stereotypical woman.

In the seminal case of Price Waterhouse v. Hopkins, the Supreme Court of the United States ruled that sexual harassment based on whether an employee conformed to a particular gender stereotype was prohibited by Title VII. In that case, a woman was harassed for being too masculine and was urged to act more femininely—wear makeup and jewelry and have her hair styled. The Court found that this conduct was discrimination based on sex. A similar claim could be brought by a man who is teased and humiliated by his supervisors for being too feminine.

Many cases involving discrimination based on sexual orientation proceed under a theory of gender stereotyping. For example, the Fifth Circuit (the federal court that hears Texas federal cases) in EEOC v. Boh Brothers Construction ruled that derogatory comments directed toward a homosexual man because of his mannerisms that his coworkers perceived as feminine were prohibited by Title VII.